Deliberative Democracy, Truth, and Holmesian Social Darwinism
Alexander Tsesis · SMU Law Review · 2019
Justice Holmes’s “marketplace of ideas” analogy often characterizes First Amendment free speech cases. This article examines the Social Darwinistic roots of the analogy and suggests that First Amendment jurisprudence need not depend on a libertarian approach to protect freedom of speech. Although the marketplace philosophy assumes that open and uninhibited speech will enhance public dialogue, it fails to safeguard the equal rights essential to democracy. Tracing the historical link between hate speech and violence, it argues for a contextual approach to free speech theory that analyzes, among other factors, the statement’s circumstances, the speaker’s interests, and public concerns for representative governance that protects equality, liberty, and general welfare. Limiting harmful speech is possible without violating the First Amendment through balancing the speaker’s rights against countervailing policy interests, means/ends fit, and alternative avenues of communication.